Abortion Rights Advocates, Opponents' Tactics Evolve

This is TALK OF THE NATION. I'm Neal Conan, in Washington. It's now almost four decades since the Supreme Court's famous and controversial ruling that legalized abortion. In recent years, opponents have stepped up efforts to challenge Roe v. Wade in Congress and state legislatures, in court and at the ballot box, last year in particular.

And a split has emerged between the slow-and-steady approach and advocates of much bolder steps, so-called personhood amendments and heartbeat laws. For the most part, abortion rights supporters appear to be on the defensive.

If you support abortion rights or oppose, what political tactics are best right now? Give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. Go to npr.org. Click on TALK OF THE NATION.

Later in the program, USAID administer Rajiv Shaw on Haiti two years after the earthquake, but first the evolving politics of abortion. We begin with NPR health policy correspondent Julie Rovner here with us in Studio 3A. Always nice to have you on the program.

JULIE ROVNER, BYLINE: Always nice to be here.

CONAN: And when it comes to big Supreme Court cases, typical that those on the losing side become motivated. Things have been gearing up, though, particularly last year for those who oppose abortion rights.

ROVNER: Yes, I think the 2010 elections, which swept in an awful lot of Republicans, not just in Congress but also in the state legislatures, really prompted an enormous amount of legislation at the state level. A new study from the Alan Guttmacher Institute, which is respected for its data processing, if you will, by both sides found that there were enacted - and this is not just introduced but enacted - 135 separate reproductive health provisions - so some of these were buried in other laws - in 36 states, and that was up from 89 the year before.

So it was an extremely busy year. Of those, 92 of those provisions in 24 states restricted abortion. So that's more than two-thirds, and that was dramatically more than I think in any other year since they've been keeping track.

CONAN: And those who support abortion rights hailed the vote in Mississippi that did not pass, the so-called personhood amendment, but doesn't that sort of obscure the rest of what's going on?

ROVNER: Yes, very much so. I think a lot of these state houses were taken over. State legislatures went from being at least partly Democratic to being all Republican or all - both houses and the governorship were Republican. As we've seen, I mean, this is not purely a party issue, but largely Republicans are more anti-abortion than Democrats. So in states where you had both houses become Republican and a Republican governor, you tended to see more of these abortion-restricting laws both introduced and passed.

CONAN: Even in Congress, of course there's a Republican majority in the House of Representatives, they passed a couple of anti-abortion measures that did not make it through the U.S. Senate.

ROVNER: That's exactly correct. They passed several anti-abortion measures that did not make it through the U.S. Senate. But indeed the government was almost shut down, if you'll recall, over whether or not to de-fund Planned Parenthood. That became one of the last issues when they were trying to decide whether to keep the government running in the funding bill last spring.

CONAN: And that on the federal level. On the state level, several states have passed legislation that would ban all funding for Planned Parenthood.

ROVNER: Yes indeed. I think it was six states that in one manner or another cut off funding to Planned Parenthood. In one state, actually in New Hampshire, the state cut off funding for Planned Parenthood, and the federal government went back in and gave it back.

CONAN: So as this goes on, I was interested reading your analysis, more than half the states now have waiting periods.

ROVNER: That's right. The last few states - although I think it's 26, although in South Dakota, that was a particularly strange piece of legislation which required not just a waiting period and for women to be counseled, which is traditionally what goes along with these waiting periods is that during that waiting period, a woman would have to receive counseling.

But in the South Dakota law, a woman would have to receive counseling from what's called a pregnancy crisis center, and these are places where women go and are generally counseled not to have an abortion. And that law had been stayed. So that one I believe is still not in effect. So I don't know whether you can count that one.

But generally, at least half the states now have some sort of waiting period where a woman from the time she presents herself to a clinic as wanting an abortion can get one. And in many cases, this adds an enormous amount of cost to women who have to travel long distances to get an abortion. It means that often she'll have to go stay in a hotel.

So it - or she'll have to find a friend to stay with. It does - in some cases, it can double the amount that an early abortion can cost. So this is quite a change over really a fairly short period of time. As recently as 20 years ago, there were only one or two states that had these.

CONAN: Another change, and partly due to technology, sonogram laws, this is in several states, just yesterday a federal court I believe upheld Texas's law that requires a sonogram to be taken and described, not necessarily shown, to a prospective mother.

ROVNER: That's right. There are now five states that require sonograms. Again, this is something where - that is considered - in some of these states, the opponents say that it's considered merely a deterrent. The people who are advocating for them say that women, this is part of the informed consent, women should know what it is that they're doing, they should see a sonogram of a developing fetus so they will understand that, you know, this is a human life that they're taking.

On the other hand, once again, if a woman has to pay for the sonogram, these can be expensive. Again, this can add a considerable amount to what it costs to have a first-trimester abortion. While we're talking about the cost, we've had several states that have now banned insurance coverage for abortions.

CONAN: And the sonogram, if you remember the old days, these were very fuzzy and indistinct, not so anymore.

ROVNER: No, not so anymore. We now have these 3-D sonograms that are - show extraordinary, sharp pictures.

CONAN: There is also, then, on another level we mentioned the personhood amendment in Mississippi. This would define life as beginning at conception and at least theoretically would ban some forms of contraception that are widely used and perhaps some in-vitro fertilization techniques, as well.

ROVNER: And actually it would define life as beginning at fertilization now. You've got to be careful with the terminology. Conception is really a medical term that doctors use to describe when the fertilized egg implants in the uterus. Fertilization is that moment when the sperm meets the egg, and that is, at least medically, some time before conception.

And that becomes important when you're talking about these types of hormonal birth control. So it is really that moment of fertilization that's important in these personhood amendments because that's what makes it banned - that's what makes these types of hormonal birth control illegal under these personhood amendments.

So in fact these personhood amendments define fertilization as the moment of personhood and therefore makes these types of - many types of the pill and IUDs would become therefore illegal under these personhood amendments. And I think it was that that really helped make - turn the people of Mississippi against this personhood amendment.

Certainly Mississippi is an extremely anti-abortion state, was and is, and in fact - well, I was going to say both candidates for governor were anti-abortion. So that's - I think it was really the effort at realizing sort of how wide this might go that got people - that got voters I think to turn against it.

CONAN: It could, though, be on the ballot in a number of states next fall, and there is also the question of another form of legislation that people are trying now in - excuse me, in Ohio called the heartbeat law. This would define - restrict any abortion that - after a detectable heartbeat.

ROVNER: That's right, and that would be at about eight weeks, and that is much earlier - we've had - there have been several laws passed this past year that would ban abortions after roughly 20 weeks, that's on the theory that that is when a fetus feels pain - again, that's controversial and disputed - but those would be later abortions.

Something like the heartbeat bill would ban abortions much earlier, certainly much earlier than the Supreme Court has ever said one could ban an abortion. So that would be the earliest that we've ever seen. A couple of other states are looking at this. It's gotten the furthest in Ohio, where the Ohio House has passed it, and it's expected to come up in the Senate sometime early this year.

The governor, who is anti-abortion, has not said whether he would sign it. That would be a bill that one would expect to head to the Supreme Court if it were to pass.

CONAN: And even some abortion opponents believe it's an overreach, that it would be defeated in court and would be counterproductive. But let's bring another voice into the conversation. Joining us now is Jay Sekulo, chief counsel for the American Center for Law and Justice, with us from a studio there in Franklin, Tennessee. Nice to speak with you again.

JAY SEKULO: Hey, thanks for having me, Neal.

CONAN: And we'll get down to the heartbeat law and the personhood amendment in just a minute. But is it fair to say that you feel the momentum is on your side?

SEKULO: I think so. You look at not only the discussion you just had on the ultrasound, sonograms, the parental notice requirements but also even the challenges that have been raised to the crisis pregnancy centers that operated in New York, where Planned Parenthood and NARAL tried to get those closed.

We had a Clinton appointee as a federal judge declare those attempts unconstitutional, violating the crisis pregnancy centers' rights to free speech and freedom of association.

So I think if you look at it both in the context of the abortion procedure itself and advancing a - what I would call a pro-life agenda, I think it has been moving clearly in that direction, and as you were just discussing, even with the situation in Mississippi and the law being maybe overly broad in covering - the reason it was defeated because it was covering things like contraceptives, the reality is with - not just with the Congress but at the house level, the state level, you're seeing significant progress on the life issue.

And I think that's why groups like Planned Parenthood, NARAL, are operating at the pitch they're operating on right now. They know that there's a momentum shift here.

CONAN: Well, let me ask you, though, about some of the splits in the movement that have been caused. The personhood amendment, some opponents of abortion feel, brings out the opposition, it spreads opposition. Even the heartbeat law, they say, will be too wide and could be counterproductive.

SEKULO: Well, look, I'm a litigator. So I'm always cautious that the laws drafted and put in place have to be specific to cover the harm you're dealing with. And if a law was written, as the concern was in Mississippi that the law was written too broadly that was covering contraception, in-vitro fertilization and so forth, clearly that's what - why the people down there - and as you just said, it's a very pro-life community there, very much opposed to the abortion movement, but yet they rejected it.

Why did they reject it? Because in their view it went too far. So I think in crafting these - and the same thing goes for the personhood amendment. They have to be very specific and very clear at what you're trying to protect here, and that is the life of the unborn without question. And that's where specificity is going to be the key in moving not only the legislation forward but also the litigation, as well.

CONAN: And at the same time, though, you can I'm sure understand the frustration of those on your side who say it's been 39 years, we need bold action.

SEKULO: Well, sure, and look, there is a pent-up demand. But it's gone from - you have to look at - I look at the pro-life cause as a movement, like you would look at a civil rights movement or look at any movement, and things change. Remember, in the '80s and '90s, what were we talking about? Well, we were talking about blockades of abortion clinics. That's not what you're talking about today.

It's a very different - it's the high-tech, it's the 3-D ultrasounds, it's a different scenario.

CONAN: Jay Sekulo, chief counsel of the American Center for Law and Justice. Later in the program, we'll speak with Nancy Northup, president of the Center for Reproductive Rights. If you are for abortion rights or oppose them, which political tactics are best for your side right now? Give us a call, 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION, from NPR News. I'm Neal Conan. We're talking about the abortion debate today. Abortion rights opponents have employed a wide variety of tactics to chip away at Roe v. Wade in recent years, working at the state level to narrow the definition of a legal abortion.

The abortion rights supporters then seem to have been largely on the defensive. If you suppose abortion rights or oppose them, what political tactics make the most sense right now? Give us a call, 800-989-8255. Email us: talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

NPR health policy correspondent Julie Rovner is with us here in Studio 3A. We're also joined by Jay Sekulo, chief counsel of the American Center for Law and Justice. And let's see if we can get a caller involved in the conversation. We'll go to Jordan(ph), and Jordan's on the line with us from Cincinnati.

JORDAN: Yes, greetings from the queen city of the West, Cincinnati. Here in Ohio, we have - of course you already talked about the heartbeat bill. Well, we're trying to - I'm pro-life, and I'm a supporter of the heartbeat bill. We're trying to ban abortions and ban any harm to fetus at the earliest detectable heartbeat.

And we've been trying some very novel things. First off, we've been contacting our senators, especially those who we know are on the defense. There are a lot of pro-life Democrats here in Ohio. So we've been contacting them. We've been sending children to their offices with teddy bears with heartbeats inside, so when you squeeze the teddy bear, you hear the heartbeat.

And we've been explaining and educating the members of our Senate on why this is an important bill. We know that there are some pro-choice groups like NARAL who have already been out there crowing about it. They've been accusing us of using kitschy techniques. But really what we're trying to do, is we're trying to get public pressure built. And that's really what the key is here.

It's a big Catholic state, a big evangelical state. We believe we've got the support. We just need to get people mobilized and contacting their legislators.

CONAN: Jay Sekulo, it's not just Ohio. As we mentioned, I think Kansas and Arizona, a few other states are considering a heartbeat bill. What are the pros and cons of this measure?

SEKULO: Well, I think the pro is, which makes perfect sense, is that once the heartbeat's established - which as you said is probably about six to eight weeks out - you're dealing with life. And at that point, under our system of governance, you would think that we would support and protect of the life of that unborn child, would have certain rights.

That's where also these personhood amendments kind of come into play. If you ask me, as a litigator, what's the downside? Well, the downside is we are still, unfortunately in my view, operating under the Rose versus Wade framework. Now, that makes it a little bit more difficult for our side on a legal challenge.

But when you look at the most recent abortion cases, Neal, the partial-birth abortion cases, you see that there's been - and that included Justice Kennedy writing the majority opinion, a significant move towards allowing protection and recognizing the value of the unborn child's life.

So I think it's moving in the right direction, but I don't want anyone to think for a moment that it's a foregone conclusion that if the case was at the Supreme Court of the United States today, that we would necessarily carry the day on the personhood amendment or a heartbeat bill. That does not mean don't support them. I do support them.

CONAN: Julie Rovner, the standard used by the Supreme Court thus far has been viability.

ROVNER: No, not - well, not necessarily. They've been changing the standards quite a bit. One of the interesting things, though, is that with a lot of these laws that you would think, you know, these, sort of, incremental chipping away at abortion rights that you would think would go straight to court, a lot of the sort of the abortion rights groups have been afraid to take some of these to court because they're afraid that the court would uphold them.

So they don't - they would rather not have some in now. But I think the heartbeat bill is one that they would sort of be willing to probably take that one to court, at least this - the court the way it's currently made up. I think that's one that both sides might be willing to roll the dice on.

But a lot of these other restrictions tend to be going through because the - given as Mr. Sekula said on particularly the last major decision, which was on the partial-birth abortion ban law that was upheld, a lot of these other restrictions that have gone in, I think abortion rights groups are fairly confident that they would lose, that these restrictions would be upheld. So they're not pursuing too many legal challenges to some of these.

But there is still this thought that they would - that if a bill came along that really did ban it this early that I think they would think they would probably be able to win that one.

CONAN: Jordan, thanks very much for the call.

JORDAN: Thank you, Neal.

CONAN: And let's see if we can go next to - this is Brian(ph), Brian with us from Sacramento. Brian, are you there?

BRIAN: Hello?

CONAN: You're on the air, go ahead, please.

BRIAN: OK, hi. Yeah, Brian here. One of the things that a lot of us in the - you know, Christian, evangelical Christian community do is - I realize that, you know, showing pictures of aborted fetuses doesn't really excite anybody. But I've given a lot of donations and support to crisis pregnancy centers, just - which provide services to a lot of these teenagers, even older women, who are contemplating abortion either because financially they don't think they can support a child, or because their parents or somebody is telling them, you know, they should get an abortion.

And they come to our - these centers, and they get acceptance, they get people that will give them a free ultrasound, they will provide them diapers and actually help them start classes to be a good parent and bring the husband in, too - or not the husband, the father in. And just, you know, reaching people that way, with love and acceptance, and these people are not having abortions.

CONAN: Jay Sekulo, this has been a very dynamic part of what you describe as your movement.

SEKULO: It is dynamic, and it is also the cutting edge. And there's been an attempt, most recently in Baltimore and in New York City, to close down crisis pregnancy centers or to have them regulated to make requirements and make statements that they find offensive.

What's interesting in both of those cases, and I mentioned this earlier, Neal, is that in both cases, it was Democratic-appointed federal court judges that held that the attempts to maintain this required speech from these crisis pregnancy centers, effectively closing them, was unconstitutional restrictions on their freedom of speech and freedom of association.

And the crisis pregnancy center I think is part of this new phase of the movement, if you will, which is not only offering alternatives to abortion, whether it be adoption or raising the child, but providing services to the pregnant woman while this process that she's going through or making these decisions.

So these crisis pregnancy centers are, in a very real sense, on the front lines, and I think this is where the movement is going, and that's why you saw the challenges that we've seen so far, and there's been a recent one that's just now started, we don't have a decision on it yet, in California.

So you've got Baltimore, New York City and I believe San Francisco the three focal points, and the two so far that have been decided have been decided in our favor.

CONAN: We'll have to see how that works out.

BRIAN: If I could...

CONAN: Very quickly, if you would.

BRIAN: Sure, it's nice to be on the side of the popular culture because you've got movies like the recent "Knocked Up" movie, while we don't approve of the casual sex that it portrays, but in the movie, you know, they want to have the baby. And in fact the mother said, oh, abort it, and the daughter is aghast that she would even suggest that because that's so wrong. And it's nice to see popular culture encouraging the idea that babies are babies, and we should have them.

CONAN: Brian, thanks very much for the call, appreciate it. And Jay Sekulo, thank you, as always, for your time today.

SEKULO: Thanks for having me back.

CONAN: Jay Sekulo, chief counsel of the American Center for Law and Justice, with us from a studio there in Franklin, Tennessee. Nancy Northup, president of the Center for Reproductive Rights, joins us now from our bureau in New York. Nice to have you on the program.

NANCY NORTHUP: It's good to be here, thanks.

CONAN: And is it unfair to characterize the wind as being in the sails of the other side?

NORTHUP: I think we should actually start with a reality check, which is that one in three women in the United States makes the decision to terminate a pregnancy. So this battle, this avalanche of new state laws, this assault that we've been hearing about in today's show is about the dignity of one in three American women, it's about their health care, and it's about respect for their decision-making.

What these laws are about is saying that we don't trust women to make the decision to which the Constitution entitles them, and that's the fundamental issue that is at stake here. It is the promise of the Constitution, that in a free society, there is a zone around the individual for them to make the critical, important decisions about their lives. And Americans, in the end of the day, do not want to give up that constitutional promise of their right to make these decisions about their own lives.

CONAN: You say Americans, very broadly. And I think the opinion polls uphold a majority of Americans believe that way still, but it is shifting.

NORTHUP: Well, you know, the polls can come out different ways. I think, fundamentally, again, to go back to the reality of the decisions that one in three American women make. I mean, that's what matters, is when a woman is in that position - and only she and those that she consults with know what it is that is influencing that decision.

So what people say to polls and what women may decide when they are in the position of having to decide can be two very different things.

CONAN: Let me just quote Nancy Keenen, the president of NARAL Pro-Choice America, who told Newsweek of her anguish. Last January, as she watched the march on Washington: I just thought, my gosh. They're so young. There are so many of them, and they're so young. Today's zeal and confidence and perseverance in the abortion battle are on the anti-abortion side.

NORTHUP: I respectfully, I think, disagree. I think there is a lot of support. I mean, if you think about the change, even in - you know, most women, 99 percent of women are going to use contraception in their lives, those who are sexually active. And there's a real acceptance of - that this is their right to decide to do that. And so I think - the difference is because these are private decisions. It doesn't always drive people out into the streets to advertise about the kind of decisions they're going to make about their families and their health care and their lives.

And that - but that being said, you know, there is tremendous support, and it's important - and I think, in the last year, we've seen a tremendous outpouring of people who have joined with Planned Parenthood as they have been under assault, joined with groups like NARAL or the Center for Reproductive Rights, and are getting ready and are standing with us because they understand that this is a fundamental fight about American constitutional values, about the right to privacy, about First Amendment rights, about separation of church and state.

So I think that you're going to see this overreaching, which is not just that courts are blocking what has been pushed by the anti-choice agenda in the past year, but as we saw in Mississippi, even the voters in that state pushed it back as going too far.

CONAN: Was Julie Rovner correct in her analysis just a few moments ago, do you think, when she said there are cases where the pro-abortion rights side has decided not to take it to court for fear that they would lose?

NORTHUP: Well, the Center for Reproductive Rights is probably the largest litigator in the country on access to abortion and other reproductive rights issues. We are not afraid to take cases to court, and we are not afraid when the facts and the law are clear that these are going to be rights violations for women. What we don't do is jump every time the anti-choice movement pushes a new law. So we don't jump just because they say jump. And sometimes these laws are passed just for the purpose of making political points or just for the purpose of trying to drag us into a court battle that's really going to be about a political angle that they want to push.

So we are not - we have sued multiple times over - just even in the last year, the year before. We've gotten injunction after injunction after injunction. So we're not afraid to stand up for women's constitutional rights.

CONAN: This is Nancy Northup, president of the Center for Reproductive Rights. Julie Rovner, NPR health policy correspondent, is also with us. You're listening to TALK OF THE NATION, from NPR News. And let's get Ryan on the line, Ryan with us from Nashville.

RYAN: Hi. Thanks for taking my call.

CONAN: Sure.

RYAN: I'm personally opposed to abortion. I don't think it's a good idea. But, I mean, at the bottom of it, it's a medical condition. I think it only belongs between the patient and a doctor. And I think, tactically, that's what we should be looking to do, because there is a big I-don't-want-the-government-in-between-me-and-my-doctor movement that we just had with the Affordable Health Care Act. And I think if we can tap into that, that maybe we can make some inroads in changing people's minds. Because if you're going to let the government in between this doctor-patient relationship, then that's - there's a slippery slope for all the rest of the doctor-patient relationships.

CONAN: Nancy Northup, is that a viable approach?

NORTHUP: Absolutely. I think that the right venue for the issues around abortion, contraception, women's role in the world, those should be discussed in the sphere of religion or persuading people and their personal lives about what to do. It does not belong legislated by the government. Again, we have a constitutional commitment that in a free society, like the United States, that there is a zone around the individual that the government doesn't cross, and that the government should not be telling us what to think and telling us what to do, but respecting us as decision-makers about our own lives.

So it is absolutely appropriate that people discuss this as a policy issue, as a public health issue, as a moral issue in the world of debate. But as a legal matter, as a constitutional matter, the government needs to stay out of it.

CONAN: Ryan, thanks very much. Let's go next to Melissa, another caller from Nashville.

MELISSA: Hi. Thank you for having me on today.

CONAN: Go ahead, please.

MELISSA: I'm pro-choice. I'm completely with Nancy on this, and it's completely a woman's right to choose. But I do think that women do need to be educated, and they don't need to get rid of contraceptives and, like, Plan B and the morning-after pill because - I mean, between those first six weeks it is - you don't have a heartbeat, as the guy that was on earlier said. But I do think that women need to be more conscious of the fact that - I mean, yes, it is one in three women that - the women that do choose to go forth with that, that you need to be more conscious of the fact that, yes, there is a heartbeat, and, yes, they do need to see what's going on in their body and be safe about their choices.

CONAN: Nancy Northup?

NORTHUP: Well, I think that the Center for Reproductive Rights doesn't oppose the provision of any information women which to consider in making their reproductive choices. And that's fine. And women should consult all available information that they have and they want to think about in considering when making that decision. Again, what we're just talking about is the government, and the government banning access to abortion services, forcing itself in between the doctor-patient relationship, forcing ideological messages out of the doctor's mouth to their patients, which is a violation of ethics, as well as the women's own decision-making.

So, again, in the sphere of people making decisions, all kinds of considerations and arguments should be made. But when we're talking about the law, that's where we want to be sure that the constitutional rights are respected and not eroded. I really don't think - and, again, Mississippi was a real good example of this. There was a time in this country when back, you know, before the Griswold decision in the 1960s, where state governments could tell married couples that they could not use contraception, that that could be criminalized.

Well, we have seen through that decision of the court in the 1960s that that's not the proper place for the government under our Constitution, that couples should be able to make the decision about the use of contraception. And the Mississippi voters said we don't want to go back to a time when the government would tell us what to do about these things of our lives and our families.

CONAN: Melissa, thanks very much for the call. And, Nancy Northup, thank you for your time today. We appreciate it.

NORTHUP: Thank you.

CONAN: Nancy Northup joined us from our bureau in New York. She's president of the Center for Reproductive Rights. Our thanks as well to Julie Rovner, who joined us here in Studio 3A. When we get back, Rajiv Shah will join us. He's the head of USAID, and two years after the quake, he'll tell us how the rebuilding effort is going in Haiti. How U.S. dollars are being used there. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION, from NPR News. Transcript provided by NPR, Copyright National Public Radio.